Strike Rights of Essential Employees in the U.S.A.

Abstract

It addresses the strike rights of employees in essential services in the United States of America. Unlike at least most European countries, U.S. laws do not define ‘essential services’ for the purpose of strike rights, and generally such laws do not follow the rules the International Labour Organization has set out in this area. Also, unlike most other countries, strike rights are quite different for public employees and private employees. Private employees have broad strike rights (on paper, if not always in practice), under federal statutes. Public employees, in contrast, are typically covered by the laws of the states in which they work, and sometimes by the laws of counties or cities within those states. The clear majority of public-sector labor laws in the US bar strikes by all public employees.

This chapter looks at the strike rights of police, firefighters, prison guards, and hospital, and utility workers. Police and fire employees are exclusively public employees (and thus covered by state and local government laws); prison guards are mostly, but not exclusively, public employees; and hospital and utility employees can be either public or private employees. The rights to strike (or lack thereof) of all these employees are determined primarily by whether they are public or private workers, not by the type of work that they do.

Public-sector labor laws in the U.S. have some important commonalities regarding strike rights of the relevant employees, but they do vary widely. Still, where they differ, they tend to use one of several discrete types of models. For example, no public-sector labor law in the US permits police, fire service, or prison guards to strike. Instead, US public-sector labor law has developed various, but at least somewhat standardized, alternative methods for resolving bargaining impasses, using combinations of mediation, ‘fact-finding’ and various types of interest arbitration.

This chapter first describes the political and historical background that led to modern U.S. labor laws. It then discusses strike rights and related rules for essential employees in the private sector. It then turns to the more complex issue of bargaining and strike rights for employees in the public sector, among other things describing the different types of models of bargaining and strike rights that exist among the states. This includes, but is not limited to, sanctions for illegal strikes and alternatives to strikes. The chapter also discusses policy debates and actual experience with strikes. It ends with this author’s evaluation of US labor law rules in this area.

Keywords: Labor Law, strikes, comparative law, international law, employment law, essential employees, public employees

JEL Classification: J51, J52, J53, J83, J88, K31, K33